by Andrea Monti (originally published in Italian by IlSole24Ore – May 1, 2020)
The criminal investigations against the unlawful distribution of newspapers, periodicals and books are interesting in several respects. Firstly, it is a step towards making those who commit a crime by hiding behind the screen of a smartphone, i.e. the user of a service, responsible for their course of action. Secondly, it focuses on “platforms”, i.e. those operators who “rely” on the access network to make profits and who therefore can immediately provide data to prosecutors and perform selective blocking. Thirdly, and as a consequence, it puts again on the table the issue of the actual (non) neutrality of platforms. EU Directive 31/00 is evident in this respect: operators who do not interfere in users’ behaviour must not perform pre-emptive monitoring. But those who, like platforms, are not “neutral” to those who use them should not be able to take advantage of this possibility, as has been happening for some time in Italy and Europe.
Hopefully, the European Union eventually decide to give platforms an autonomous legal status and liability. However, these criminal investigations create a legal precedent on another very technical but essential issue: the possibility of configuring a responsibility (whether under the criminal intent or other liability doctrines) for crime by design. The idea is simple: as in any human action, when somebody decides to do something, has to make sure that it does not cause damage and upholds the law. If somebody designs a platform (or a business model that exploits it) without mechanisms that prevent its illicit use, and the absence of these mechanisms is what makes my product/service successful, then he cannot deflect his liability.
In this specific case, therefore, it is necessary to understand the way Telegram works and assess, for example, if it is a provider of a press distribution service and then if the entire revenue generation model is based on service neutrality.
Finally, this case is the test-bed for that case law (Cass. penale, sez.II sent. 11959/20) that, after only twenty-five years from the first theoretical elaborations, finally recognizes the nature of “thing” to data and files. This jurisprudence opens the possibility to charge a defendant not only of copyright infringements but also of serious crimes such as money laundering or receiving stolen goods. In this case, it would be possible to claim more substantial charges for the perpetrators of the offences, and more dissuasive for those who have “nasty thoughts”.